| Cover |
- Ideograph
Alistair Gentry
Ideograph is a digital drawing originally commissioned by the
ESRC Genomics Forum. With a few small exceptions, it is a
single, continuous line
depicting the many elements and applications of genomic
technologies, which constitute some of the most exciting and
controversial technologies of the
early 21st century.
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| Editorial |
- Lex Personalitatis & Technology-driven Law
Joseph A. Cannataci, pp.1-6
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| Reviewed Articles |
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Trade
Mark Coexistence Agreements: What is all the (lack of) fuss
about?
Matthew J Elsmore, pp.7-30
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Traditionally, it is understood
that trade mark law tackles the prospect of damage resulting
from the use of confusingly similar trade marks. The aim is
broadly to ensure commercial origin is differentiated and
proprietary rights secured. A lot is written on this in Europe.
In contrast, very little time and space is allocated to trade
mark coexistence agreements. Despite a shortage of authoritative
rulings, it is not immediately clear why, especially as they may
be having a profound impact on the use of product markers.
Coexistence agreements commonly exist between parties with at
least similar trade marks who decide to formally coexist, often
in the wake of legal skirmishes. In the busy European market,
where Community-wide protection is available, an up-front
contract may be an attractive way to avoid trade mark conflict.
When these contracts work, trade mark law is effectively
pre-empted as the underlying agreement, possibly remote of
genuine trade mark concerns, is the real governing law. Among
other things, this affects the ability of competitors to acquire
rights and the quality of information available to consumers. A
better understanding of these agreements is essential therefore,
not least because on the limited occasions they come before
trade mark bodies, the juridical response is inconsistent,
though a theme that emerges is of a dismissive and unconvincing
attitude. The reasons why are rarely elaborated and while this
may simply reflect an awkward interplay between contracts and
trade marks, the article deepens the discussion. Starting from
concepts and commercial realities, the analysis proceeds to case
law and underlying legal and economic rationale to determine
whether the lack of fuss is justified.
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Criminal Friends of Entertainment: Analysing Results from Recent
Peer-to-Peer Surveys
Herkko Hietanen, Anniina Huttunen, Heikki Kokkinen, pp.31-49
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We conducted a survey to find out
P2P (peer-to-peer) users attitudes toward copyright and P2P
services. The survey results suggest that P2P users are aware
that they are breaking the law and about half of the users even
consider the use of illegal file sharing sites as morally wrong.
Even though survey participants knew what amounted to copyright
infringement, they had difficulties in recognising the legal
uses of works that copyright law permits.
The biggest payoff for the illegal file sharers was the
immediate access to large catalogue of works which were free of
charge and DRM-free. Yet nearly half of the respondents would be
willing to pay monthly for a service that enabled unlimited
music and video file sharing and downloading.
Rights owners’ actions and amendments in the legislation have
not had any noticeable impact on file sharing. File-sharers are
aware of the punishments but the risk of getting caught was
considered miniscule.
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Entry
into the Market for Online Distribution of Digital Content:
Economic and Legal Ramifications
John
B. Meisel,
pp.50-69
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Consumer options for consuming
creative content in digital form, such as music, movies, books,
and television shows, have increased significantly with the
development of the Internet. Entrants into the distribution
stage of production have developed new business models to
deliver digital content in general and copyrighted digital
content in particular. The objective of this paper is to analyse
the development of competition in the delivery of digital
content to consumers. In particular, the focus is on new
technologies that facilitate online dissemination of digital
content to consumers through the use of peer-to-peer (P2P)
networks and video hosting sites that have proliferated over the
Internet since the late 1990s. The role of copyright as a
potential competitive weapon by incumbent disseminators is
joined in the analysis. P2P file sharing networks and video
sharing web sites are viewed as entrants into the market for the
dissemination of digital content to consumers. The incumbent
technologies for distributing content have reacted aggressively
to this new source of competition and have pursued legal,
economic, and moral strategies to combat the use of authorised
and unauthorised content by the distribution entrants. Perhaps
the most important point to keep in mind is that online
distribution, both authorised and unauthorised, is here to stay.
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The Black Label: Trade Mark Dillution, Culture Jamming and the
No Logo Movement
Matthew Rimmer, pp.70-138
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This article considers the ongoing
debate over the appropriation of well-known and famous trade marks
by the No Logo Movement for the purposes of political and social
critique. It focuses upon one sensational piece of litigation in
South Africa, Laugh It Off Promotions v. South African Breweries
International (Finance) B.V. t/a Sabmark International. In this
case, a group called Laugh It Off Promotions subjected the trade
marks of the manufacturers of Carling Beer were subjected to
parody, social satire, and culture jamming. The beer slogan “Black
Label” was turned into a T-Shirt entitled “Black Labour/ White
Guilt”. In the ensuing litigation, the High Court of South Africa
and the Supreme Court of Appeal were of the opinion that the
appropriation of the mark was a case of hate speech. However, the
Constitutional Court of South Africa disagreed, finding that the
parodies of a well-known, famous trade mark did not constitute
trade mark dilution. Moseneke J observed that there was a lack of
evidence of economic or material harm; and Sachs J held that there
is a need to provide latitude for parody, laughter, and freedom of
expression. The decision of the Constitutional Court of South
Africa provides some important insights into the nature of trade
mark dilution, the role of parody and satire, and the relevance of
constitutional protections of freedom of speech and freedom of
expression. Arguably, the ruling will be of help in the
reformation of trade mark dilution law in other jurisdictions –
such as the United States. The decision in Laugh It Off Promotions
v. South African Breweries International demonstrates that trade
mark law should not be immune from careful constitutional scrutiny.
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Oscar Pistorius and the Future Nature of Olympic, Paralympic
and Other Sports
Gregor Wolbring, pp.139-160
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Oscar Pistorius is a Paralympic
bionic leg runner and record holder in the 100, 200, and 400
meters who wants to compete in the Olympics. This paper provides
an analysis of a) his case; b) the impact of his case on the
Olympics, the Paralympics and other –lympics and the relationships
between the –lympics; c) the impact on other international and
national sports; d) the applicability of the UN Convention on the
rights of persons with disabilities. It situates the evaluation of
the Pistorius case within the broader doping discourse and the
reality that new and emerging science and technology products
increasingly generate internal and external human bodily
enhancements that go beyond the species-typical, enabling more and
more a culture of increasing demand for, and acceptance of
modifications of the human body (structure, function, abilities)
beyond its species-typical boundaries and the emergence of new
social concepts such as transhumanism and the transhumanisation of
ableism.
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| Analysis |
- Genetic Models of Disease Resistance in Livestock: “What
Does Our Conscience Want?”
Kenneth M Boyd, pp.161-167
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This paper derives from a 2007
European Science Foundation Workshop on genetic models of
disease resistance in livestock. Research in this area, enabled
by ‘expanding knowledge of the genomics of key livestock
diseases, together with the latest techniques on genetic
modification,’ the organisers stated, is likely to have a ‘major
impact on animal welfare, food safety, the economy of the sector
and human health.’ What ethical issues are raised by this? The
author was invited to discuss them by addressing the question:
“What does our conscience want?”
- Corporate Counsel's New Dance Partner: "Criminal Lawyers
Teach the Limbo Dance"
Maureen Duffy-Lewis and Daniel B. Garrie, pp.168-175
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One of the unintended
consequences of the influx of corporate electronic information
is the potential liability it poses for today’s corporations.
The way companies retain (or in some instances, fail to retain)
electronically created information subjects them to not only
possible civil but potential criminal liability as well.
Magnifying this potential liability are the United States
Courts’ efforts to modernize the rules of procedure related to
discovery. Corporations are well advised to add another set of
eyes to the liability issues created by the new technological
sophistication. This paper looks at recent developments in the
United States and provides some comparisons to European law.
- A Modest Proposal for Annotating the Dialectical State of
a Dispute
Ronald P. Loui, pp.176-197
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This essay reports on the
evolution of our computer-supported argument diagramming and
argument visualisation practices, as scholars of argument, and
also as computer scientists interested in supporting the
diagramming of argument. We begin with the Toulmin diagram,
describe efforts to avoid boxes and arrows by using
encapsulation, and efforts to depict the logic of legal argument
from precedent. Our aim is to provide a theory of argumentation
and a theory of legal precedent, and to provide visual
correspondences for the logical rules. It is not our principal
aim to provide tools for persuasive use, e.g., in a court of
law. In the end, new possibilities for using text decoration and
markup, dynamic text animation and interaction, and visual
metaphor are envisioned. The possibilities are so rich that the
final examples border on satire.
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| Reports |
- TILT – Tilburg Institute for Law, Technology, and Society
Paul de Hert, pp.198-204
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| Book Reviews |
- The Global Technology Revolution 2020: In Depth Analysis
- Bio/nano/materials/information Trends, Drivers, Barriers, and
Social Implications
by Richard Silberglitt et al.
Reviewed by Carolina Botero , pp.205-207
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- The Ethics and Governance of Human Genetic Databases:
European Perspectives
by Matti Hayry, Ruth Chadwick, Vilhjalmur Arnason and Gardar
Arnason (eds.)
Reviewed by Adrienne Hunt, pp.208-213
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- Bioethics and Armed Conflict: Moral Dilemmas of Medicine
and War
by
Michael L. Gross
Reviewed by
Michael H. Kottow, pp.214-217
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- How Universities Promote Economic Growth
by By
Shahid Yusuf and Kaoru Nabeshima (eds)
Reviewed by G
Narasimha Raghavan, pp.218-219
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- Crossing Borders: Cultural, Religious, and Political
Differences concerning Stem Cell Research. A Global Approach
by Wolfgang Bender, Christine Hauskeller, Alexandra Manzei (eds)
Reviewed by
Michael Steinmann, pp.220-223
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- Broadcasting Pluralism and Diversity: A Comparative Study
of Policy and Regulation
by
Lesley Hitchens
Reviewed by
Eliza Varney, pp.224-226
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